Is Tennessee's Ruling Against Gay Marriage a Setback for the Cause?

By Garrett Epps

The great streak of court victories for gay marriage was broken on Tuesday: A state court in Kingston, Tennessee, became the first to uphold a state ban on gay marriage since the Supreme Court’s decision last year in United States v. Windsor.

The decision in Borman v. Piles-Borman, written by Circuit Judge Russell Simmons, holds that Tennessee does not have to recognize the marriage of two male Tennessee residents who had traveled to Iowa to wed. They sought state recognition because they had decided to divorce—and Iowa won’t permit their divorce unless one is an Iowa resident.

Tennessee’s “anti-recognition law,” which this decision upholds, limits the state's recognition of out-of-state marriages to those between a man and a woman. The decision is, as the judge notes, of limited effect—“the decision of this Court will only be binding on this case and this Court.” In fact, a federal district court in Nashville has already struck down the anti-recognition law, and an appeal is pending before the Sixth Circuit. (District court decisions don't bind other courts, so Simmons was not bound by the federal court's decision, particularly since his court sits in a different district of the Sixth Circuit than the one where the ruling was issued.)

More than two dozen courts in the 14 months since Windsor have struck down laws against gay marriage. Simmons's decision, then, seems to be an outlier; his opinion appears unlikely to start a lower-court stampede in the other direction. But it is worth considering as window into the arguments of gay-marriage opponents.

Seen through that lens, the important thing about Simmons’s opinion is its even tone. He notes that in 1972, the Supreme Court briefly considered a same-sex couple’s challenge to a state marriage law, and dismissed it “for want of a substantial federal question.” Other courts have held that the 1972 case, Baker v. Nelson, is no longer binding because the law has changed—particularly in light of Windsor. In that case, the majority held that the federal government has to recognize valid state same-sex marriages; thus, most subsequent judges have reasoned, the federal question can hardly be seen as “insubstantial.” Simmons, however, argues that Windsor didn’t overrule Baker; indeed, Windsor didn’t even mention Baker.

Simmons goes on to hold that the state’s ban on same-sex marriage is valid. His reasons aren’t very original: Only men and women can procreate. “Biology alone, therefore, provides a rational explanation for Tennessee’s decision not to extend marriage to same-sex couples,” he writes. The right to marry, he agrees, is “fundamental.” Like other opponents of same-sex marriage, however, he insists that same-sex marriage is not “marriage” at all, but something brand-new and strange. “The battle is not whether or not marriage is a fundamental right but what unions are included in the definition of marriage,” Simmons writes.

That truly is the central question. If same-sex marriage is “marriage,” then the “biology” argument takes us nowhere, since marriage is permitted to couples who can’t have children. But if it isn’t “marriage,” it is something scary and new (“newer than cell phones or the Internet,” Justice Samuel Alito said during oral arguments in the Proposition 8 cases).

Distrust of newness is the essence of old-style conservatism. “A spirit of innovation is generally the result of a selfish temper and confined views,” Edmund Burke wrote in his Reflections on the Revolution in France. “People will not look forward to posterity, who never look backward to their ancestors.” The satisfaction of present needs may create future problems, and so should be avoided if possible.

American law fundamentally rejects that view of the world. Confronted with a claim of individual right, our constitutional tradition insists that government justify itself now, with actual evidence and not vague fears. But the Burkean temper is not hateful; it is simply timorous. Simmons's decision doesn't rant and rave, even if its basis is fundamentally irrational. Advocates of same-sex marriage (I’ve been one for 25 years) need to take note of that fact.

But is all opposition to gay marriage inspired by hate? And if it isn't, does that make a legal difference?

Gay marriage is on a roll, and victory can bring hubris. A number of voices have begun to insist that any opposition to same-sex marriage is “bigotry.” Thus, for example, a popular dating site demands that its patrons stop using a specific web browser because an official of the browser company once opposed same-sex marriage. Thanks, but if I were dating, I’d find a less paternalistic dating site. That level of outrage is justified only if opposition to gay marriage is moral leprosy, like white supremacy or Holocaust denial. But is all opposition to gay marriage inspired by hate? And if it isn’t, does that make a legal difference?

Adam Liptak shrewdly explored this question in a recent column in The New York Times. The key to Justice Anthony Kennedy’s thought, and vote, he notes, is the concept of “animus.” Anti-gay measures like §3 of DOMA, Kennedy has written, are adopted for the sole purpose of making gays less than equal, and thus are unconstitutional.

Kennedy’s antagonists on the Court, however, react to the “animus” claim like World Cup footballers rolling on the ground in simulated agony. They insist that the only meaning of “animus” is “bigotry.” Justice Antonin Scalia, in his Windsor dissent, claimed that Kennedy was portraying the opponents as “unhinged members of a wild-eyed lynch mob.”

There’s a misconception here—that without hatred, there can be no legal “animus.” Consider Scalia’s own explanation, in his dissent in Lawrence v. Texas, of why a state can outlaw gay sex. “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home,” he wrote. “They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

In other words, the majority did not hate gay people, they simply wanted to keep them apart from others.

That wish to exclude a group from full equality must be backed by something more than dislike, or disapproval, or suspicion, or unfamiliarity. Otherwise, no matter how calmly it may be expressed, it is “animus.” People who feel that wish, however, may not feel hatred at all; calling them “bigots” doesn’t advance the dialogue. Instead, patient argumentation should address their arguments, not assault their character. Argument breaks down fear; assault intensifies it. And assault recasts the moral valence of the movement: Instead of crusaders for equality, marriage advocates begin to seem (as Alito has suggested) intolerant and “bigoted” themselves.

Gay marriage has been on a roll. That roll is likely to continue, Simmons's decision notwithstanding. But hubris is a mortal danger to any movement, and gay-marriage activists must avoid premature triumphalism. Assaulting opponents as “bigots” is poor strategy. Many of them, like Simmons, are simply confused and a bit afraid. Asking the Supreme Court, and in particular Kennedy, to brand them all as evil may backfire.